A NEW WAY TO MAKE
INTERNATIONAL ENVIRONMENTAL LAW
Sir Geoffrey Palmer
1991 Laureate United Nations Environmental Programme Global 500,
Formerly Prime Minister, Attorney-General and Minister for the Environment of New Zealand.
The purpose of this article is to suggest a new way to make international law for the environment. The existing methods are slow, cumbersome, expensive, uncoordinated, and uncertain. Something better must be found if the environmental challenges the world faces are to be dealt with successfully. Nearly twenty years after the Stockholm Declaration we lack still the institutional and legal mechanisms to deal effectively with transboundary and biospheric environmental degradation.
In delivering the New Zealand Government statement at the United Nations in 1989 I suggested a new organ of the United Nations be established to deal with -environmental problems.4
My experience in international diplomacy convinced me not only that the environmental problems we face are grave but also that the state of our international law and the structure of our international institutions are defective. Put simply we lack rules and the means of devising them; we lack institutions which can ensure what rules we have are effective. I do not wish to sound apocalyptic. The proposals put forward here build on existinginternational law and institutions.
A NEW INSTITUTION
The weakness of the international machinery has not escaped comment. The Hague signatories wanted new institutional authority which would "develop instruments and define standards to enhance or guarantee the protection of the atmosphere and monitor compliance. In 1988 at a Canadian-sponsored Conference in Toronto there was a call for a comprehensive framework convention and protocols to protect the atmosphere.96 And experts did quite a lot of work in framing a convention. The President of the World Federation of United Nations Associations has proposed that the Trusteeship Council could be revitalized and given a new mission to exercise trusteeship over the "planetary systems on which our security and survival depends, as well as for the global commons.
Relying explicitly on the Hague Declaratio.-i I advanced on behalf of New Zealand in the 1989 General Assembly debate a proposal for a new United Nations institution, an Environmental Protection Council. The proposal was developed in the following way:
In New Zealand's judgment, the traditional response of international law; developing international legal standards in small incremental steps, each of which must be subsequently ratified by all countries; is not longer appropriate to deal with the highly complex environmental problems of the future.
The time has come for something more innovative, for a conceptual leap forward in institutional terms. And we see the need for the establishment of a new organ in the United Nations system-perhaps it would be called the 'Environmental Protection Council'. The United Nations already has a Security Council. We have an Economic and Social Council and a Trusteeship Council. We also have two chapters of the United Nations Charter on the settlement of disputes and the maintenance of peace. We have a chapter laying down the rules and principles with respect to Non-Self Governing Territories. I have no doubt that if the Charter were being drawn up today, there would be widespread support for including among the organs of the United Nations a body empowered to take binding decisions on global environmental issues. In our view, nothing less than an institution with the status will command the necessary respect and authority to achieve wliat is required.
Perhaps the most effective way to achieve this would be the inclusion in the United Nations Charter of a new Chapter dealing with the environment.
The missing institutional link, however, is the equivalent of a legislature. We would envisage the new Environmental Protection Council becoming the point in the United Nations system which links the streams of economic and environmental advice. It would perform the function that currently falls between the cracks in the mandates of all existing organizations. It would have responsibility for taking coordinated decisions on sustainable policies for global environmental protection. It would be empowered to take binding decisions. And if decisions are to be binding, the membership of the Council may need to be very wide-perhaps including all members of the United Nations. But the key thing is that should have power to act-not just talk [Rt Hon Geoffrey Palmer, General Debate Statement, United Nations General Assembly, supra note 4 at 76-77].
There are basically four policy options in the institutional area. It is possible to leave things as they are. UNEP could be beefed up and given formal responsibilities. Third, the Secretariat approach of the Vienna Convention could be embroidered and developed so that a series of secretariats operate for separate environmental issues. At present that is the way things are heading. The fourth broad option is to create a new international institution.
It will take a lot of political commitment to take the high road now but it is likely to ensure that there will less trouble later on. International norms gain legitimacy from the process bv which they are arrived at. An enduring institutional framework in which the processes are thorough, based on a solid scientific base where there is plenty of opportunity for refinement and debate is likely to serve the world best in the long run.
What form should a new institution take? The most ambitious course is to create a new organ in the United Nations by amending the Charter. The procedures for changing the charter are by no means easy, and the permanent members of the Security Council have a veto. It would be the best possible outcome from the 1992 Conference for a new organ of the United Nations to be created for the Environment. But in some respects an option easier to achieve and one which could provide a more workable institutional framework would be the creation of a new specialised United Nations agency.
There dre many international institutions which now exist for dealing with a whole range of topics. Indeed, there are international institutions of significance for subjects which are much less important and urgent than the problems of the global environment. In this field there are again a number of choices. It would be possible to expand and develop the United Nations Environment Programme, negotiate a charter for it and charge it with some extra responsibilities. The General Agreement on Tariffs and Trade or the International Monetary Fund may also provide a model for a new environmental organisation. But to my mind the most useful model is that which has been developed over many years by the International Labour Organisation.99
One feature of this approach is the direct involvement of non- governmental organisations in setting the standards. One lesson from the ozone work is the way in which decisions taken impact on the business community. Widespread consultation with industry is necessary at the domestic level both to provide information and education about the problem and to work through the practical difficulties of compliance. The Ministry of the Environment in New Zealand carried extensive consultations with industry so that a tough policy could be implemented without objections from industry.
It is equally true that many environmental organisations have developed knowledge and expertise on some of the global environmental issues beyond that of governments. Governments in the smaller countries, in particular, often lack the background and manpower to develop independent expertise in some of these areas. I found that it was much better to share information and have consultations with environmental NGOs so we could pool our knowledge and discuss the approaches to be taken at international conferences. Governments do not have a monopoly on wisdom. There are a number of dedicated people in the environmental NGOs who ca'n make a valuable contribution.
The International Labour Organisation provides a model for this sort of interaction in making standards. Indeed this is the super-treaty system which is the most advanced in terms of providing legislative outcomes of any of the international agencies. Borrowing loosely from the Constitution of the International Labour Organisation a new International Environment Organisation could be established with the following structure.100
(a) A General Conference comprising all members to be called together annually and more often if the Governing Council so decides. The Conference shall comprise four representatives from each member, two of whom shall be government delegates and the two others shall be delegates representing respectively business and environmental organisations.
(b) A Governing Council of forty people-twenty representing Governments, ten representing business organisations and ten representing environmental organisations.
(c) The ability to settle the contents of International Environmental regulations through the Conference by a two-thirds majority of the votes cast by delegates present. There would also be provision for recommendations to be made to members.
(d) A Director-General and staff of the International Environment Office to have explicit international responsibilities for educating people on the global environmental problems and what they can do to help.
(e) The office to have defined functions for gathering data, information and monitoring compliance including verification of compliance with regulations. Reviews should be concluded regularity of the environment policies of member states and their compliance with regulation.
(f) A thorough preparatory process in which there is ample notice, thorough scientific and technical preparation and consultation before regulations are made.
(g) Formal provision for authoritative and widely representative scie ntific advice and papers to be available to the organisation-
(h) Detailed requirements for nations to report on action taken to implement agreed regulations. The environment and business representatives would be required to report separately from governments. The obligation to report on action taken should recur every year.
(i) Complaints for non-observance should be capable of being made by any member in respect of another member to the International Environment Office.
(j) The Council may refer such complaints to Commission of Inquiry to report on it. Such Commission to consist of three appropriate experts of recognized impartiality and be chaired by a lawyer. The Commission makes findings of fact and rule on what steps should be taken to deal with the complaint and the time within which they should be taken. Where a government will not accept a finding so arrived at it is referred to the full conference.
(k) Where there is no compliance the Council can recommend to the Conference measures to secure compliance. In order for this to be effective there have to be some strong incentives to join the organisation and stay in it. Forinany countries these probably will reside in technical assistance, information, advice technology transfer and even financial assistance available to deal with environmental problems. From a practical point of view sanctions would include the withholding of benefits by the organisation, direct contacts with delinquent governments and mobilization of the politics of shame. Few nations like to be regarded as international pariahs and shame as a sanction ought not to be underestimated.
The great advantage of creating a new international organisation of the type outlined is that it allows the technique of prolepsis to be used to arrive at rules which are binding without the requirement of unanimity. It maximises the prospects of compliance with those rules by requiring explanation as to adoption and monitoring for compliance. It provides a dispute settlement mechanism which is part of the institutional structure and not remote from it. What it does not do is to overcome the need for consent by a nation to join the organisation and remain a member. These incentives will have to be provided by peer pressure and political means. But I do not regard it as unrealistic to think that we will evolve to the position where the norms are binding on every nation in the international community. It may happen quite quickly.
Many nations, particularly the most powerful and certainly the United States, are likely to be opposed to the creation of such an organisation. The Secretary-General of UNEP recently reported to a preparatory committee meeting of UNCED that "There is a broad consensus among government that the creation of new institutions should be, avoided where possible".101 In
The global environmental problems make up a classic case of the tragedy of the commons. The author of that thesis told us that "[Rluin is the destination toward which all men rush, each pursuing his own best interest in a society which believes in the freedom of the commons. Freedom in a commons brings ruin to all."102 International society is only slowly waking up to the consequences of its own actions toward the global commons. The challenge is how to legislate for temperance using the only means at our disposal, international law.
International law has never been confronted with a set of problems of the nature and quality of the global environmental problems. To meet the challenge a new approach is needed. It is an approach which builds on the international law and institutions which we have. The thesis advanced is that in those particular ways that international law seems different from municipal law there will have to be changes. To deal effectively with the global probloms it will be necessary to have a form of legislative capacity. It will be necessary to make rules which are binding on nations by means other than the rule of unanimous consent.
Some of the disputes further on down the line could be difficult indeed; the rules will have to be capable of fair and binding adjudication as between nations. Some inspection and enforcement will be inevitable. The stakes are so high that slippage in meeting the standards will be intolerable. The actions of one nation could render nugatory the actions of all the others who have acted to preserve the global environment.
The three challenges are setting the rules, monitoring -and verifying compliance and providing an authoritative and binding method of settling disputes. Each of these goals can be better achieved if a new international organisation is established. A new United Nations organisation called the International Environment Organisation should be established at the 1992 meeting at Brazil. It should have a number of the features of the International Labour Organisation for the establishment of norms, monitoring of their compliance and settling disputes. The rest of the international machinery touching the environment should be restructured to avoid duplication and waste.
The argument is not for some utopian system of world government. It is merely a limited extension of the existing institutions of international law so the law can cope effectively with a new problem. It does require nations to surrender some sovereignty. It is palpably in their self interest to do so. The politics of it are good. Most members of the public of the planet think preservation of life here a sound idea.
There is a political imperative driving environmental diplomacy. It is the increasingly level of consciousness among people everywhere of the serious nature of the global environmental problems. You can feel it in the air at the increasingly numerous international conferences which are held on these subjects. Governments are now anxious to be seen to be taking a constructive stance. It is time for a modest advance.